The EPC and the Forgotten Footnote
When I was in law school, a discussion of the Equal Protection Clause dedicated great deal of focus on footnote 4 in U.S. v. Carolene Products:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. [cites omitted] It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. . . . Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious,[cites mitted] or national, [cites omitted], or racial minorities. [cites omitted]; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. . . .
(Emphasis supplied.) More.
In Parents Involved, Chief Justice Roberts wrote:
It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. Johnson v. California, 543 U. S. 499, 505–506 (2005); Grutter v. Bollinger, 539 U. S. 306, 326 (2003); Adarand, supra, at 224. As the Court recently reaffirmed, “‘racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.’” Gratz v. Bollinger, 539 U. S. 244, 270 (2003) (quoting Fullilove v. Klutznick, 448 U. S. 448, 537 (1980) (Stevens, J., dissenting); brackets omitted). In order to satisfy this searching standard of review, the school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is “narrowly tailored” to achieve a “compelling” government interest. Adarand, supra, at 227.
(Emphasis supplied.) Roberts cites Grutter for this proposition. But what did Grutter say?
When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied. Context matters when reviewing race-based governmental action under the Equal Protection Clause. See Gomillion v. Lightfoot, 364 U.S. 339, 343—344 (1960) (admonishing that, “in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts”). In Adarand Constructors, Inc. v. Peña, we made clear that strict scrutiny must take “ ‘relevant differences’ into account.” 515 U.S., at 228. Indeed, as we explained, that is its “fundamental purpose.” Ibid. Not every decision influenced by race is equally objectionable and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context.
Parents Involved does not even make a nod at the once-famous Carolene footnote. But Grutter, in my view, does by its discussion of context and the compelling state interest in "diversity." Grutter held that:
With these principles in mind, we turn to the question whether the Law School’s use of race is justified by a compelling state interest. . . . We first wish to dispel the notion that the Law School’s argument has been foreclosed, either expressly or implicitly, by our affirmative-action cases decided since Bakke. It is true that some language in those opinions might be read to suggest that remedying past discrimination is the only permissible justification for race-based governmental action. See, e.g., Richmond v. J. A. Croson Co., supra, at 493 (plurality opinion) (stating that unless classifications based on race are “strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility”). But we have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination. Nor, since Bakke, have we directly addressed the use of race in the context of public higher education. Today, we hold that the Law School has a compelling interest in attaining a diverse student body.
What does Chief Justice Roberts say in Parents Involved?
The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter, 539 U. S., at 328. The specific interest found compelling in Grutter was student body diversity “in the context of higher education.” Ibid. The diversity interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity.” Id., at 337. . . .
So is diversity not a compelling interest for NON-higher education? According to Chief Justice Roberts, it is not:
In upholding the admissions plan in Grutter, though, this Court relied upon considerations unique to institutions of higher education, noting that in light of “the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” 539 U. S., at 329. See also Bakke, supra, at 312, 313 (opinion of Powell, J.). The Court explained that “©ontext matters” in applying strict scrutiny, and repeatedly noted that it was addressing the use of race “in the context of higher education.” Grutter, supra, at 327, 328, 334. The Court in Grutter expressly articulated key limitations on its holding—defining a specific type of broad-based diversity and noting the unique context of higher education—but these limitations were largely disregarded by the lower courts in extending Grutter to uphold race-based assignments in elementary and secondary schools. The present cases are not governed by Grutter.
A remarkable statement indeed. Ameliorating de facto segregation is a compelling state interest for higher education but NOT for elementary and high school education. This is simply an indefensible statement.
The context of elementary and high school education makes the compelling state interest in diversity even more compelling than in the higher education context, not less. No one can deny that these formative years are more influential in development and learning.
And when one considers the supposed "harm" caused by seeking diversity at the elementary and high school levels, the case becomes overwhelming. There is no "merit" system in elementary and high school education. At least in theory, elementary and high shcools should strive to provide equality in educational quality. A student who is assigned to a different school as a result of diversity policies should, in theory, reap only the benefits of diversity and suffer none of the harm that the Grutter plaintiffs allegedly did - to wit, not being granted admission to the law school. The requirement of a "narrowly tailored" approach is precisely to limit harm caused by the policy seeking to forward the compelling state interest. The objection to "racially balancing" approaches is not that it does not forward a compelling state interest, as Chief Justice Roberts asserts, rather the objection is that it is not a narrowly tailored approach to achieve the compelling state interest. Chief Justice Roberts simply misunderstands the strict scrutiny standard, ascribing the flaws of "racial balancing" plans to the first prong of the test, compelling state interest, to what should have been ascribed to a failing under the second prong - using narrolwy tailored means.
In the end, to justify the injustifiable, Chief Justice Roberts has raised even more hackles by invoking Brown to rationalize his contortions:
We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, supra, at 300–301 . . . . What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis? Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.
(Emphasis supplied.) The "very different reason" is the very context that is critical here and are at the heart of what the Carolene Products footnote and the law that developed subsequently was about.
While Parents Involved is wrong on almost every level, the fundamental error springs from forgetting the context that Chief Justice Stone was referencing in the once famous, and now forgotten, footnote 4 of Carolene Products.
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